BETTY JANE WINTERBERG, PERSONAL REPRESENTATIVE OF THE ESTATE OF DONALD G. WINTERBERG, APPELLANT,
v.
JACK W. JOHNSON, D/B/A JACK W. JOHNSON TRUCKING, AND ROBERT WAYNE HOWELL, APPELLEES
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The appellate court affirmed the trial court's denial of a motion for new trial based on defense counsel's alleged improper closing argument remarks. The court clarified that violations of professional conduct rules in closing argument do not automatically constitute fundamental error requiring reversal absent objection.
The trial court did not err. A closing argument violating professional conduct rules does not automatically constitute fundamental error. Reversal requires that the conduct be so pervasive, inflammatory, and prejudicial as to preclude the jury's rational consideration of the case, and the trial court must have been unable to correct it through proper instruction.
[1] A closing argument that violates Rule 4-3.4 of the Rules Regulating The Florida Bar does not automatically constitute fundamental or harmful error.
[2] Appellate courts' primary consideration in reviewing attorney misconduct is its effect on the fairness of the trial proceedings, not attorney discipline.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a closing argument that violates rule 4-3.4 of the Rules of Professional Conduct, Rules Regulating The Florida Bar, does not necessarily constitute fundamental or harmful error.”
Establishes the core holding that professional conduct violations are not automatically reversible error
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Join FLexlaw to unlock all legal intelligenceDonald G. Winterberg died, and his estate brought a lawsuit. The trial proceeded to verdict, and plaintiff's counsel did not object to remarks made by…
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WOLF, Judge.
Appellant, the plaintiff in the trial court, raises a number of issues.
We affirm as to all issues, but determine one issue merits discussion: Whether the trial court erred in denying a motion for new trial on the grounds that defense counsel expressed his personal beliefs in closing argument.
Appellant argues for reversal notwithstanding the fact that plaintiff did not object to any remarks made by the defendants’/appellees’ attorney. We decline to do so where the comments did not rise to the level of fundamental error. Counsel for appellant candidly conceded that he attended a seminar where he was told that based upon this court’s decision in Sacred Heart Hosp. of Pensacola v. Stone, 650 So. 2d 676 (Fla. 1st DCA), rev. denied, 659 So. 2d 1089 (Fla.1995), in the first district, any closing argument that violates rule 4-3.4 of the Rules Regulating The Florida Bar, constitutes fundamental error. He, therefore, made a conscious decision not to object. As noted in the concurrence in Rockman v. Barnes, 672 So. 2d 890, 892 (Fla. 1st DCA 1996), others have also misread our decision in this manner. We specifically instruct counsel that a closing argument that violates rule 4-3.4 of the Rules of Professional Conduct, Rules Regulating The Florida Bar, does not necessarily constitute fundamental or harmful error. While appellate courts have a role in overseeing the conduct of attorneys, our primary consideration in reviewing a case is not to discipline attorneys, but to consider how the misconduct affected the fairness of the trial proceedings. We must determine if the level of conduct was so pervasive that it could not be corrected by proper instruction from the trial court, and whether the conduct was so “pervasive, inflammatory, and prejudicial to preclude the jury’s rational consideration of the case.” Hagan v. Sun Bank, 666 So. 2d 580, 583 (Fla. 2d DCA 1996).
See also Judge Farmer’s dissent in Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 4th DCA 1996), rev. granted, 680 So. 2d 422 (Fla.1996).
The conduct in this case was not so egregious as to constitute fundamental error. As in Donahue v. FPA Corp., 677 So. 2d 882, 884 (Fla. 4th DCA 1996), we note, “If counsel intends to appeal to this court, they would be well advised to object.”
Affirmed.
JOANOS and VAN NORTWICK, JJ., concur.
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Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)…ourts to use the remedy of new trial as a tool to punish misconduct of an attorney.” Hagan, 666 So. 2d at 584. However, closing argument that is violative of rule 4-3.4 does not necessarily constitute harmful error. See, e.g., Winterberg v. Johnson, 692 So. 2d 254, 255 (Fla. 1st DCA 1997). Although courts have a supervisory role in overseeing the conduct of attorneys, the primary concern of courts must be how the improper closing argument affected the fairness of the trial proceedings. Thus, we agree with the…
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Pate v. Renfroe, 715 So. 2d 1094 (Fla. 1st DCA 1998)…during closing argument constitute fundamental error. Pate’s counsel failed to object below to any of these remarks. We remind counsel that, “[i]f counsel intend to appeal to this court, they would be well advised to object.” Winterberg v. Johnson, 692 So. 2d 254, 255 (Fla. 1st DCA 1997)(quoting Donahue v. FPA Corp., 677 So. 2d 882, 884 (Fla. 4th DCA 1996)(Klein, J., concurring specially)). Pate contends that the trial court abused its discretion in denying his motion for new trial or additur because the ju…
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City OF Jacksonville v. Tresca, 692 So. 2d 991 (Fla. 1st DCA 1997)…nd that the behavior of counsel was not so egregious as to constitute fundamental error, and again remind counsel that if they wish to appeal an issue to this court, they would be well advised to object in the trial court. See Winterberg v. Johnson, 692 So. 2d 254 (Fla. 1st DCA 1997) (citing Donahue v. FPA, 677 So. 2d 882 (Fla. 4th DCA 1996). Case number 96-2425 is affirmed. In ease number 96-2704, Judith P. Tresca and Sylvia F. Sinclair appeal from a judgment awarding attorney’s fees in the same eminent dom…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)
- Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla. 4th DCA 1996)
- Sacred Heart Hosp. OF Pensacola v. Stone, 650 So. 2d 676 (Fla. 1st DCA 1995)
- McDONALD v. State, 672 So. 2d 890 (Fla. 5th DCA 1996)
- Donahue v. FPA Corp., 677 So. 2d 882 (Fla. 4th DCA 1996)